Court No. - 65
Case :- APPLICATION U/S 482 No. - 10532 of 2019 Applicant :- Chaman Khan Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Sanjay Mishra Counsel for Opposite Party :- G.A., Kapil Tyagi
Hon'ble Dinesh Kumar Singh-I,J.
Let the counter affidavit filed on behalf of the State be taken on record.
Heard Sri Sanjay Mishra, learned counsel for the applicant, on behalf of the opposite party No. 2 Shri Samarth Sinha holding brief of Shri Kapil Tyagi, Sri B.A. Khan, learned A.G.A. - I, appearing for the State and perused the record.
This application under Section 482 Cr.P.C has been moved with a prayer to quash the entire proceeding of Case No. 90183 of 2018 (State Vs. Zeenat and others) arising out of Case Crime No. 121 of 2018 under Sections 363, 366, 376 IPC and Sections 3/4 of POCSO Act, Police Station Chandaus, District Aligarh pending before learned Additional Sessions Judge, Court No. 8, District Aligarh pursuant to the charge sheet dated 24.10.2018 as well as to quash the impugned cognizance taking order dated 19.01.2019 passed in the aforesaid case.
It is argued by the learned counsel for the applicant that the opposite party No. 2 is father of the victim and victim has married the accused applicant. The marriage certificate has been annexed at page No. 31 and its registration is at page No. 33 of the paper book. Further it is argued that in the statement under Section 164 Cr.P.C. the victim has given her statement in support of the accused and has not supported the prosecution version as given in the First Information Report. The statement under Section 164 Cr.P.C. is at page No. 41 of the paper book. It is further argued that the Crl. Misc. Writ Petition No. 12061 of 2018 was preferred by the applicant in which by order dated 10.05.2018 arrest of the accused was stayed up to submission of the police report under Section 173 (2) Cr.P.C. Against the said order opposite party No. 2 had moved a recall application, which was rejected by order dated 03.08.2018. The said order is at page No. 37 of the paper book. It is further argued that as regards the age of the victim in her ossification test her age was found to be 19 years by the Chief Medical Officer, Aligarh, the report of the said test is at page No. 40. It is further argued that there were two High School certificates. In one the date of birth of the victim was recorded as 10.07.1998, while in the other certificate of High School Examination her date of birth is recorded as 08.07.2002. He has apprised the Court that with respect to this discrepancy as to which out of these two certificates is correct, proceedings under Section 340 Cr.P.C. are going on. Therefore, it is submitted by the learned counsel for the applicant that charge sheet has been erroneously submitted by the Investigating Officer under Section 376 IPC as well as other sections because on the date of occurrence, the victim was major and had voluntarily married the accused applicant and it is nothing but an abuse of the process of Court which needs to be quashed because the accused as well as victim are living together as husband and wife.
On the other hand, the learned A.G.A. has vehemently opposed the prayer for quashing and has brought to the notice of this Court that on the basis of a false High School certificate in which her age is shown recorded as 10.07.1998 and based on that the victim has been got released in favour of the accused under the order passed by the trial court. While in the genuine High School certificate her age is recorded as 08.07.2002. If her age be counted on the date of occurrence on the basis of this certificate, her age would come to 15 years 09 months and 14 days. Hence, she was minor. The Investigating Officer has taken this certificate into consideration while submitting the charge sheet and after verification the same has been found to be genuine. Hence, there is no infirmity in the charge sheet and therefore, the proceedings in the present case needs not to be quashed.
I have gone through the First Information Report. The opposite party No. 2, Dildar Khan has recorded in the First Information Report that the occurrence took place on 22.04.2018 at about 03:00 P.M., then, the daughter of the opposite party No. 2 i.e. victim as well as wife of the opposite party No. 2 were at home and then, the daughter of Gulshan Khan - Jeenat (accused applicant's sister), and Saimeen daughter of Munne son of Asfaq had taken away the daughter of opposite party No. 2 to their house and when she did not return from there for long, opposite party No. 2 and his family members tried to find out from the members of the family of Gulshan and Munne Khan, they consoled that she would return very soon. When pressure was put upon them, the daughter of Munne namely Saimeen told that the victim had been enticed away by her brother Chaman, Gulshan and Jeenat. After lodging of this First Information Report investigation was conducted and charge sheet has been submitted against accused applicant under the above mentioned Sections. The charge sheet is annexed at page No. 44 onwards of the paper book, which has been submitted after having recorded statements of as many as 11 witnesses. The veracity of the said witnesses cannot be tested in proceedings u/s 482 Cr.P.C.
From the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no cognizable offence is made out against the applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings u/s 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon'ble Supreme Court in cases of R. P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604 and State of Bihar and Anr. Vs. P.P. Sharma, AIR 1991 SC 1260 lastly Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors., AIR 2005 SC 9. The disputed defense of the accused cannot be considered at this stage.
It is settled law that in the proceeding under Section 482 Cr.P.C. evaluation of the statements of the witnesses recorded by the Investigating Officer cannot be made nor any discrepancy can be looked into by this Court. Time and again, it has been highlighted by Supreme Court that at the stage of charge sheet factual query and assessment of defence evidence is beyond purview of scrutiny under Section 482 Cr.P.C. The allegations being factual in nature can be decided only subject to evidence. In view of settled legal proposition, no findings can be recorded about veracity of allegations at this juncture in absence of evidence. Apex Court has highlighted that jurisdiction under Section 482 Cr.P.C. be sparingly/rarely invoked with complete circumspection and caution. Very recently in Criminal Appeal No.675 of 2019 (Arising out of S.L.P. (Crl.) No.1151 of 2018) (Md. Allauddin Khan Vs. The State of Bihar & Ors.) decided on 15th April, 2019, Supreme Court observed as to what should be examined by High Court in an application under Section 482 Cr.P.C. and in paras 15, 16 and 17 said as under:-
"15. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, 379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.
16. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.
17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short "Cr.P.C.") because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case." (Emphasis added) As regards the offence under Section 3/4 of the POCSO Act and under Section 376 IPC whether the same is made our or not, reliance is placed by this Court on the law laid down by the Hon'ble Apex Court in the case of Independent Thought Vs. Union of India and another, (2017) 10 SCC 800, paragraph Nos. 1 and 107 of which are reproduced below:-
"1.The issue before us is a limited but one of considerable public importance? whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape? Exception 2 to Section 375 of the Penal Code, 1860 (IPC) answers this in the negative, but in our opinion sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. The Exception carved out in IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. The artificial distinction is arbitrary and discriminatory and is definitely not in the best interest of the girl child. The artificial distinction is contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Article 21 of the Constitution and our commitments in international conventions. It is also contrary to the philosophy behind some statutes, the bodily integrity of the girl child and her reproductive choice. What is equally dreadful, the artificial distinction turns a blind eye to trafficking of the girl child and surely each one of us must discourage trafficking which is such a horrible social evil.
"107. On a complete assessment of the law and the documentary material, it appears that there are really five options before us: (i) To let the incongruity remain as it is? this does not seem a viable option to us, given that the lives of thousands of young girls are at stake; (ii) To strike down as unconstitutional Exception 2 to Section 375 of the IPC? in the present case W.P. (C) No. 382 of 2013 Page 68 this is also not a viable option since this relief was given up and no such issue was raised; (iii) To reduce the age of consent from 18 years to 15 years? this too is not a viable option and would ultimately be for Parliament to decide; (iv) To bring the POCSO Act in consonance with Exception 2 to Section 375 of the IPC? this is also not a viable option since it would require not only a retrograde amendment to the POCSO Act but also to several other pro-child statutes; (v) To read Exception 2 to Section 375 of the IPC in a purposive manner to make it in consonance with the POCSO Act, the spirit of other pro-child legislations and the human rights of a married girl child. Being purposive and harmonious constructionists, we are of opinion that this is the only pragmatic option available. Therefore, we are left with absolutely no other option but to harmonize the system of laws relating to children and require Exception 2 to Section 375 of the IPC to now be meaningfully read as: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape." It is only through this reading that the intent of social justice to the married girl child and the constitutional vision of the framers of our Constitution can be preserved and protected and perhaps given impetus."
As regards the age of the victim, it is settled law as decided by a Division Bench of this Court in the case of Nisha Naaz Alias Anuradha And Another Vs. State Of U.P. And 2 Others CRIMINAL MISC. WRIT PETITION No. - 20816 of 2018 that the procedure as provided under Section 94 of the Juvenile Justice Act would be followed and relevant paragraphs are quoted herein below:-
"On enactment of Juvenile Justice (Care and Protection of Children) Act, 2015 (for short 2015, Act), the procedure for determination of age of a juvenile in conflict with law, which was provided in the 2007 Rules framed under the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short 2000, Act), as noticed in Jarnail Singh's case (supra), has been incorporated in section 94 of the 2015, Act, which is extracted below:
94. Presumption and determination of age.-- (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under Section 14 or Section 36, as the case may be, without waiting for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining--
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order."
A plain reading of Section 94 of the 2015, Act would reveal that only in absence of: (a) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board; and (b) the birth certificate given by a corporation or a municipal authority or a panchayat, age is to be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board. A Division Bench of this court in the case of Smt. Priyanka Devi Vs. State of U.P. and others in Habeas Corpus Petition No.55317 of 2017, decided on 21st November, 2017, after noticing the provisions of the 2015, Act and the earlier 2000, Act and the rules framed thereunder, came to the conclusion that as there is no significant change brought about in the 2015, Act in the principles governing determination of age of a juvenile in conflict with law, in so far as weightage to medico legal evidence is concerned, the law laid down in respect of applicability of those provisions for determination of a child victim would continue to apply notwithstanding the new enactment. The Division Bench in Priyanka Devi's case (supra) specifically held that as there is on record the High School Certificate, the medico legal evidence cannot be looked into as the statute does not permit.
The judgment of the apex court in Suhani's case (supra) does not lay down law or guidelines to be used for determination of the age of child victim. Further, it neither overrules nor considers its earlier decisions which mandated that the age of child victim is to be determined by the same principles as are applicable for determination of the age of juvenile in conflict with law. From the judgment of the apex court in Suhani's case (supra), it appears that the concerned victim (petitioner no.1 of that case) was produced before the court and the court considered it apposite that she should be medically examined by the concerned department of All India Institute of Medical Sciences (for short AIIMS). Upon which, AIIMS, by taking radiological tests, submitted report giving both lower as well as higher estimates of age. On the lower side the age was estimated as 19 years and on the higher side it was 24 years. Therefore, even if the margin of error was of 5 years, the victim was an adult. Hence, on the facts of that case, in Suhani's case, the first information report was quashed by the Apex Court. The decision of the Apex Court was therefore in exercise of its power conferred upon it by Article 142 of the Constitution of India which enables it to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. The said decision cannot be taken as a decision that overrules the earlier binding precedents which lay down the manner in which the age of a child victim is to be determined"
I have to analyze the present case in view of the above position of law and I find that there is one High School certificate in which date of birth of the victim has been recorded as 08.07.2002 which has been found to be genuine by the Investigating Officer after having made thorough investigation and the other High School certificate in which her date of birth has been recorded 10.07.1998 has been found to be not correct. In this regard, though proceeding under Section 340 Cr.P.C. is stated to be pending but that would not mean that the Investigating Officer's conclusion at this stage can be discarded by this Court in the proceeding under Section 482 Cr.P.C. and this Court finds that this fact as to which of two certificates is correct has to be adjudged by the Trial Court during trial as that is the subject matter of dispute, which requires evidence to be led and this Court cannot look into this controversy at this stage. It has to confine to the perusal of the documentary evidence only which was collected during the investigation by the Investigating Agency.
In view of the above, I find no merit in this application under Section 482 Cr.P.C. and the prayer made for quashing of the entire proceeding in the aforesaid case is refused.
Accordingly, the Application under Section 482 Cr.P.C. stands dismissed.
However, the applicant may approach the trial court to seek discharge at appropriate stage, if so advised, and before the said forum, he may raise all the pleas which have been taken by him here.
The applicant shall appear before the court below within 30 days from today and may move an application for bail. If such an application is moved within the said time limit, the same would be disposed of in accordance with law.
For a period of 30 days, no coercive action shall be taken against the accused applicant in the aforesaid case. But if the accused does not appear before the court below, the court below shall take coercive steps to procure his attendance.
Order Date :- 26.9.2019 LBY